Viscount Bridgeman: My Lords, does the Minister share my concern arising from the previous reply that the latest threat assessment from NCIS states:
	"While there have been some law enforcement successes in targeting the traffickers, it appears that prostitutes who are arrested or deported can be replaced within",
	a week?

Lord Lloyd of Berwick: I oppose the Question that this clause stand part of the Bill.
	Section 3(5) of the Terrorism Act 2000 provides that any organisation which "promotes or encourages terrorism" can be banned by an order of the Secretary of State. That banning is called "proscription". Proscription is a very valuable tool. It was not at first thought so by the Home Office. It thought that proscription would serve little purpose, but happily the Home Office changed its mind. At the time of 9/11 I remember feeling a tremendous sense of relief on looking at the list of organisations that had by then been proscribed and finding that al-Qaeda was at the top.
	While proscription is a valuable tool, it should be handled with the greatest of care because members of an organisation that has been banned are automatically guilty of an offence by the mere fact of their membership of that organisation. I have no doubt that proscription, when it first entered into law in the 2000 Act, was intended to catch organisations like al-Qaeda that are committed to violence. It was never intended to catch non-violent organisations, however unattractive they might be. I am concerned that Clause 21 will do just that.
	Why is Clause 21 liable to catch non-violent organisations? The answer is that it expands beyond all reason the meaning of "promotes or encourages terrorism" in Section 3 of the 2000 Act. The effect of the clause, if enacted, is that an organisation that "glorifies" an act of terrorism—whatever that may mean, and we know the problems involved with that word—is to be deemed to promote terrorism, even though the organisation has no intention of doing so, if there are persons anywhere in the world who might reasonably be expected to infer that they should "emulate" the act of terrorism in question.
	That at once leads to all the difficulties that were discussed in Committee on Monday last week in relation to Clause 1. But Clause 21 is worse than Clause 1. At least under Clause 1, in order to secure a conviction, the prosecution would have to prove intent or recklessness. But under Clause 21 the Home Secretary could proscribe an organisation, even though that organisation was completely innocent, merely because its pronouncements were liable to be misunderstood. I am sure that it will be said that the Secretary of State would never prosecute other than in a clear case, and no doubt that is so; and no doubt it will be clear to him if he does proscribe an organisation, but it may not seem so clear to the organisations themselves.
	I have in mind a letter which I received last week from Hizb ut-Tahrir—a letter that I suspect many of your Lordships will also have received. Hizb ut-Tahrir is a Muslim organisation with a huge following of young and old, and Clause 21 has caused its members very grave concern. I think that most people would regard that organisation as extremist, as I suspect even its own members may do. But it is a great mistake to confuse an extremist organisation with a violent one or one that promotes or encourages violence. One has only to think of Gandhi. Many would have regarded his policies as extreme but surely no one would ever have regarded him as being committed in any way to violence.
	If Hizb ut-Tahrir were a violent organisation, it could already be proscribed under the existing Section 3 of the 2000 Act. But if it is not a violent organisation, as its members maintain, surely there is a great danger that it would be caught by Clause 21. The mere fact that it might be caught by the clause will surely do great harm to community relations.
	Like other provisions in the Bill and in other Bills brought forward by the Government, in all probability this provision will do no good at all. But it may also do great harm. For that reason, I oppose Clause 21.

Lord Thomas of Gresford: My name also appears on the Marshalled List in opposition to Clause 21. The noble and learned Lord, Lord Lloyd, has fully explained the background and I do not think that I need to go into it again. He also referred to the organisation Hizb ut-Tahrir—an Islamic political party operating internationally and priding itself on advocating non-violence. It denounced the London bombings and the New York and Madrid bombings as well. However, it calls for the return of the caliphate—that is its aim—and, worse than that, it calls for Mr Blair to step down from office for lying about Iraq's non-existent weapons of mass destruction and for authorising cluster bombing in Iraq and Afghanistan. I think that that gives your Lordships a little flavour of the nature of its political involvement.
	The noble and learned Lord, Lord Lloyd, referred to Mr Gandhi, but I suggest that there is a British parallel which may illustrate the problems of this legislation. If Clause 21 captures Hizb ut-Tahrir, surely it will capture Plaid Cymru, the Party of Wales. In the history of the party on its current website is a celebration of Saunders Lewis, the party's president from 1926 to 1939. Although he was a noted writer and dramatist, he was not, it says, an ivory-tower academic. The website states that he,
	"along with . . . Lewis Valentine and DJ Williams, took part in the celebrated burning of the Penyberth bombing school. This symbolic gesture sought to highlight the evils of militarism and to draw attention to the threat posed by military developments to the cultural and linguistic integrity of the Llyn peninsula".
	The website goes on to say that a Conservative government could secure a conviction only by having these three men tried at the Old Bailey in London. They describe the trial as a watershed that sowed the seeds for the future. It certainly did. I have no doubt that it indirectly encouraged the activities of Mudiad Amddyffyn Cymru, who blew up the reservoir at Clywedog in the 1960s, put a bomb inside the Temple of Peace in Cardiff in 1968 and were responsible for the bomb on the railway line at Abergele during the Prince of Wales's investiture when the two men who were carrying it were killed. I am also sure it was the inspiration behind Meibion Glyndwr, to whom I referred at an earlier stage of the Committee, who claimed responsibility for burning more than 200 cottages in the 1970s and 1980s. They even targeted the noble Lord, Lord Hunt, when he was Secretary of State for Wales in 1990. Yet the trial of the Penyberth Three is still on the Plaid Cymru website. Is that not unlawful glorification as defined in Clause 21?
	The Government may think Plaid Cymru is a dangerous party. Currently, it sponsors the Impeach Blair organisation and, like Hizb ut-Tahrir, accuses our Prime Minister of lying to Parliament and it wishes to impeach him for high crimes and misdemeanours in relation to the invasion of Iraq. Perish the thought that that should happen. Of course, Plaid Cymru has always—

Lord Thomas of Gresford: I am suggesting that this is a party that eschews violence, embraces peaceful and democratic aims, but glorifies terrorism that has happened in the past. If the Government, not liking its current stance, decided to proscribe it for glorifying Saunders Lewis, I am sorry that the noble Lord does not understand. Perhaps I can explain it more clearly.

Lord Thomas of Gresford: I am sorry if the noble Lord is unable to follow my argument. Those two organisations both espouse peaceful political means, yet both of them glorify terrorism within the meaning of this clause and may not perhaps be the most popular organisations in the eyes of the current Prime Minister. I am using this only as an illustration, to show what happens should Plaid Cymru be proscribed and to give the Committee some idea of the scope of the Bill.
	The consequence of that party being proscribed would be that every member of Plaid Cymru would be liable to imprisonment for a period of 10 years. Any person organising a meeting of Plaid Cymru or addressing Plaid Cymru would be liable to the same penalty. Anyone carrying a flag or wearing a T-shirt which could give rise to the inference that he was supporting Plaid Cymru would be liable to a term imprisonment of up to six months.
	I hope the Committee will see that when I bring this matter down to something with which we are familiar—a peaceful, political party which has never advocated violence but nevertheless glorifies violence that has happened in the past which has actually been emulated—we get to grips with what this clause is all about: the glorification of terrorism. I hope this translation of the terms of British politics will bring home the fact that this is an extraordinarily powerful weapon that is being put in the hands of this or any government, and we oppose it.

Lord Peyton of Yeovil: I would never presume so far as to suppose that anything I say in your Lordships' House would be memorable, but it was only yesterday afternoon that I expressed my concern not about what the Government think a clause means but about what some busybody will subsequently claim that it means. I gave an example of a victim who I was sure was not intended by Ministers: the poor lady who was reciting a list of British casualties in Iraq from the steps of the Cenotaph and found herself escorted away by no fewer than 10 policemen. That is an example of what vagueness can do and this clause is extremely vague.
	As a matter of interest, I would like to know whether the word "organisation" is defined in the Bill. Is one person capable of being an organisation? This is an important matter.

Lord Harris of Haringey: I am aware that it is extremely unwise for Members of your Lordships' House who are not legally qualified to get entangled in this debate because we all know that those with legal training have acquired all sorts of knowledge and skills way beyond those of us who have merely qualified in economics or science. I find the arguments that we have heard expressed in respect of Clause 21 very difficult to follow. For example, I find it very hard to understand that the conduct of Plaid Cymru could be such that people,
	"could reasonably be expected to infer that what is being glorified, is . . . conduct that should be emulated in existing circumstances".
	A description of what happened in the past, coupled with the fact that Plaid Cymru makes it clear that it is pursuing its ends through non-violent means, seems to me to make it very difficult for any reasonable inference that what is being glorified is conduct that should be emulated in existing circumstances. I find that argument rather difficult to follow.
	If the argument is that somehow the wording is not as precise as it might be—something that we have already debated at great length in the Chamber, and no doubt will refer to again before the Bill passes—that might be a legitimate approach. But simply to strike out the clause from the Bill seems to be taking the argument somewhat far.
	No doubt we would all agree that the principle of proscribing organisations engaged in terrorism is the right one. No doubt we would all agree—I hope we would—that those organisations which seek to facilitate the creation of funds for terrorism ought to be proscribed. Why then should we be so reluctant to proscribe organisations which are trying to procure a flow of individuals to take part in terrorism, as somehow being organisations that should continue to exist? It seems to me that the clause is trying to deal with those organisations which, because of what they say about terrorism and about those who engage terrorism, are encouraging young people, or maybe old people—all sorts of people—to engage in terrorism. Surely, that is exactly on a par with those seeking to facilitate the flow of funds toward terrorism.

Lord Stoddart of Swindon: Like the noble Lord, Lord Harris, I am not legally qualified; but I advise him not to get too involved in the intricacies of Welsh political life. It can be most difficult.
	My worry is that terrorism is a moving target. One day we may very well be condemning terrorism or a particular terrorist group and the next day we may be treating with them. That is the case, for example, with the IRA. At one time it was the terrorist. We would have nothing to do with it. We did not want to talk or negotiate with it. But the next day we found that we could talk to it and that we could negotiate with it. Therefore, it ceased to be a terrorist organisation.
	I turn to Iraq. When it was in the interests of Britain and the United States to support Saddam Hussein when he was attacking Iran, those people who wanted to get rid of Saddam, who would have been considered by the Saddam regime to be terrorists, were considered to be terrorists by the British and the United States governments. Then, when the policy changed, anybody who wanted to get rid of Saddam Hussein was considered to be our friend. So difficulties can arise, because one day the terrorists are considered to be enemies and the very next day, or perhaps the next year, they will be considered to be friends. So, when building up legislation like this, we have to be careful with what we are doing.
	The noble Lord, Lord Peyton, put his finger on it: there is the law of unintended consequences. Ordinary citizens in this country are now beginning to feel the lash of some of the laws passed in this Parliament by the present—I suppose I have to call it a Labour—Government.
	We have to be careful about what we are doing and listen to those people, particularly those who are legally trained, because they have a lot of experience, when we are passing legislation such as this, which may prove difficult to ordinary citizens of this country.
	Before I finish, I say one more thing to the noble Baroness and the noble Lord sitting on the Front Bench. They have now been sitting there constantly for the past 24 hours and more. They could not have got home before midnight or one o'clock this morning. By the time that they have finished today and got home, they will almost have exceeded 48 hours. I hope that they are not in breach of the European Working Time Directive. They deserve congratulation nevertheless for putting in a magnificent stint on that Front Bench for so long.

Baroness Symons of Vernham Dean: My Lords, I think that we all accept that there may be ways in which past acts were glorified at the time. The problem, though, that the noble Baroness and all those who support her argument have failed to address is what one does about how young people today are recruited and how terrorist organisations are sustained through individuals and organisations that glorify terrorism. As noble Lords on the other side were not continually interrupted, perhaps, as apparently one of very few speaking in support of the clause, I might be allowed to finish a couple of my points at least.
	Through the glorification of their own deaths terrorists have a very potent recruiting sergeant, which they believe can not only gather in young people but also sustain the arguments for others to support them. Of course some terrorists may be directly recruited by individuals who incite them to participate in particular acts of terrorism but many, many others are recruited indirectly, through what can only be described as glorifying the terrorist acts of others. All too often, there are not recognisable structures or hierarchies of command and control in terrorist movements and among those who support them. They are movement-based and seek to inspire others to carry out acts portrayed not as the inevitable actions of military-based organisations but as the glorious actions of those inspired to act as martyrs, and those acts, in and of themselves, can be celebrated and enjoyed.
	I know that those who object to the clause—the proscription of organisations and movements—do so for the best of all motives, because they cite democracy, freedom of speech and human rights. But in any society we have to accept that there are some restrictions on our freedoms in those crucial areas where they are necessary for the greater security of innocent civilians. Such restrictions are the everyday currency of what one might call the "social contract" that we all enter into as part of a secure society. The restriction of prohibiting an organisation from glorifying or celebrating terrorism is a very small price to pay for making our buses, streets and trains safer places for people to carry out their daily business.
	The noble and learned Lord, Lord Lloyd of Berwick, cited the Terrorism Act 2000. I do not believe that that is enough. Of course organisations can be proscribed if they are concerned with terrorism or if they are involved in committing or participating in acts of terrorism. But we all know that that is not the same as glorifying terrorism, which is why the noble and learned Lord objects to the clause. Perhaps I may remind Members of the Committee that this was very specifically part of the Labour Party manifesto on which this Government were re-elected earlier this year.
	For a restriction to be a restriction to which we can all subscribe, it has to be proportionate. I accept that entirely. But I remind those Members of the Committee on the Liberal Democrat Benches that the noble Lord, Lord Carlile, in paragraph 52 of his report, said that this clause was,
	"a proportional limitation on the freedom of association in relation to the . . . public good".
	No one welcomes a restriction that is not necessary, but, sadly, some restrictions are. The public good has to come before the freedom of some organisations to celebrate the murder of innocent people.

Lord Kingsland: I can be telegraphic about our position. We agree with the Government to this extent; that, if the Bill changes the law, it will be necessary for the Government to reconsider the current rules about proscribed organisations. It is very rare that the Opposition do not support an amendment tabled by the noble and learned Lord, Lord Lloyd; and we owe him an explanation as to why we do not do so this time. We oppose the notion of glorification and therefore three-quarters of the text of Clause 21; but we agree with the Government that there should be an offence of indirect encouragement.
	However, that is only as long as it is tightly defined, or at least defined in such a way that it is clear to someone about to make an encouraging statement what they are in for. In other words, that it would be compliant with Article 7 of the European Convention on Human Rights. That is why, as an alternative to the proposal tabled by the noble and learned Lord, Lord Lloyd, to expunge Clause 21 entirely from the Bill, we prefer our Amendment No. 114, which provides a taut but, we believe, effective definition of the offence of "indirect encouragement".
	These amendments were tabled before the Joint Committee on Human Rights published its report. Some noble Lords may be alarmed to learn that the policy laid down in our amendments is endorsed completely by the committee's report. I simply draw the attention of the Minister to two paragraphs. The first is paragraph 63, from which I shall quote one sentence:
	"In our view extending the grounds of proscription to cover organisations glorifying acts of terrorism is unlikely to be compatible with the right to freedom of expression in Article 10 ECHR or the right to freedom of association in Article 11 ECHR for the same reasons as those given in relation",
	to the definition of the offence of glorification of terrorism. The Minister might like to ponder those words in the context of the certification given to this Bill in your Lordships' House.
	I also draw the attention of the noble Baroness to an earlier passage in the summary of the report from the Joint Committee on Human Rights set out on page 3. The first sentence of the section entitled "Encouragement and glorification of terrorism" reads:
	"The Committee accepts, on balance, that the case has been made out by the Government that there is a need for a new, narrowly defined criminal offence of indirect incitement to terrorist acts".
	So there we have it: an offence either of indirect incitement or of indirect encouragement to terrorist acts, yes; but not one based on the definition of glorification that the Government have in the Bill. I hope that, between now and the Report stage, the noble Baroness will consider very carefully both the definition of glorification in Clause 1 and the way in which it has been deployed in Clause 21, and comes up with something that reflects not only our view, but that of the Joint Committee on Human Rights.

Baroness Scotland of Asthal: I am grateful to the noble Lord, Lord Kingsland, for his explanation of the position of the party opposite. I am equally grateful to him for indicating that he does not support the proposal—or perhaps more grateful to him for the latter than for the former; I record that.
	I agree with the assessment of my noble friend Lady Symons of Vernham Dean about the likelihood of Plaid Cymru being included in the Bill. It is not included. That is not the way in which the Bill is constructed. I accept, of course, that the noble Lord, Lord Thomas of Gresford, might have mischievously cited Plaid Cymru to excite our attention and our interest—I am grateful to him, as always—but it is fundamentally flawed and unnecessarily causes a deal of misplaced anxiety.
	As to organisations, I remind the Committee that the definitions in relation to organisations and terrorism are the same as the definitions found in the Terrorism Act 2000. For example, "organisation" is defined in Section 121 of the Terrorism Act 2000, which this clause amends, as including,
	"any association or combination of persons".
	The right reverend Prelate the Bishop of Salisbury raised the issue of organisations, as did others. We are simply continuing the definition that is already there, which is well understood and has been used.
	I very much agree with the analysis of my noble friend Lord Harris. I should say to the noble and learned Lords, Lord Slynn of Hadley and Lord Lloyd of Berwick, that although I understand the difficulties they contend there are in relation to a lack of precision, we believe that the legislation is precise. I shall try to explain why I say that. The Terrorism Act allows for an organisation to be proscribed if it is "concerned in terrorism". That is the basis on which proscription under the Act takes place. An organisation is concerned in terrorism if it commits or participates in acts of terrorism; prepares for terrorism; promotes or encourages terrorism; or is otherwise concerned in terrorism. That is the context in which we have to consider Clause 21.
	Additional organisations can be added to the list of proscribed organisations by order subject to the affirmative resolution procedure. Any proscribed organisation can appeal against its proscription to the independent Proscribed Organisations Appeal Commission. We have to remember that. It is not a situation where you go on a list and cannot come off, and there is no basis upon which one can protest. One can, people do, and they come off just as they go on. The decision is based on evidence.
	As my noble friend Lady Symons of Vernham Dean said, proscription is an important weapon in the fight against terrorism. I think the noble and learned Lord, Lord Lloyd of Berwick, absolutely accepts that, as does the noble Lord, Lord Carlile of Berriew, in his report on the Bill published on 12 October. I agree with the quotation given by my noble friend in that regard.
	As noble Lords are aware, for all the reasons set out in our debates on the first day in Committee, the Government believe that the glorification of terrorism should be an offence. It is right to remind the Committee that, as my noble friend Lady Symons said, this proposition was not only a part of the manifesto but was twice endorsed in Divisions in another place. I appreciate that not all noble Lords agree with the proposition and that Members of another place may have to deal with this matter in due course if the Committee comes to a view contrary to the view that they have taken.
	I am sure that I do not need to repeat all the conditions of intent that apply to the glorification offence and the safeguards and defences that it attracts. We dealt with that on the first day in Committee. If we are outlawing glorification of terrorism by individuals, the same should apply to organisations. The clause allows the proscription of a group if its activities include the unlawful glorification of terrorism or are carried out in a manner that ensures that it is associated with statements containing unlawful glorification of terrorism. That is very important for us to recognise.
	If it is possible to identify individuals who glorify terrorism, it may be possible to prosecute them if they meet the tests in the legislation. I am conscious that that will cause difficulty. However, the clause is aimed at organisations which glorify terrorism and thereby create a climate in which terrorism can flourish. If an organisation passes at its annual conference a resolution glorifying terrorism, it may not be possible to identify the individuals behind it nor may it be practical to seek to prosecute all the individuals who attended the meeting, but it would be possible to identify that organisation and prosecute it. I cannot believe that Members of the Committee would disagree with me about the propriety of so doing.
	However, the Government believe that it should be possible to take steps against such a body whose statements might be influential among young people and encourage such people to carry out terrorist threats. We cannot delude ourselves into believing that individuals have not been so influenced. There is fairly cogent evidence, not least highlighted and elucidated in the report of the noble Lord, Lord Carlile, which tells us that that is the case. Clearly, this would require something more from the organisation than simply an individual member making a glorifying statement. Rather, the clause is designed to catch those organisations which are closely associated.
	It is important to stress that the glorification of terrorism is covered only where the audience can reasonably be expected to infer that what is being glorified is being glorified as conduct which should be emulated in existing circumstances—not in old, historical circumstances, but in existing circumstances. In other words, glorification of terrorism itself is not sufficient grounds for proscription. Organisations that glorify terrorism create a climate which others may emulate.
	I hear what the noble Lord, Lord Kingsland, says about the committee's report and of course we will look at it later. But our initial view is that these provisions are compliant and are capable of being supported. I commend the opportunity we have had for this very vibrant debate, but I invite the noble and learned Lord to withdraw his opposition to Clause 21.

Lord Goodhart: I should like to question the Minister on one matter and follow up a point raised by the noble and learned Lord, Lord Lloyd of Berwick, whose views on this matter we fully support. He mentioned the case of Hisbut Tahrir, a Muslim organisation that has a somewhat unusual objective. Its main purpose is to recreate the caliphate. Historically the caliph was the religious and political leader of the entire Muslim community. Although the title did not disappear until 1924, it is fair to say that there has been no universal recognition of an individual as a caliph for about 1,200 years, so the aim of restoring it is plainly unrealistic. But as far as I am aware, and judging from the organisation's public statements, Hisbut Tahrir advocates that its objective should be achieved purely by non-violent means. In those circumstances it has been suggested that one of the Government's aims in Clause 21 is to proscribe Hisbut Tahrir. Obviously, I cannot ask the Minister what the Government's objectives might be, but does she believe that as matters now stand Hisbut Tahrir is an organisation that could be proscribed under Clause 21?

Lord Thomas of Gresford: I accept the scourgings of the noble Lord, Lord Harris, and the noble Baroness, Lady Symons, that my analogy was farfetched in referring to Plaid Cymru. Indeed, it was intended to be farfetched, to demonstrate two things: first, the vagueness of the wording of the clause and, secondly, the seriousness of the consequences.
	Under the regime set out in Part 2, the Secretary of State proscribes organisations only if he believes that the organisation is concerned in terrorism. As the Bill was originally drafted, there were four examples of being concerned in terrorism: committing or participating in terrorism, preparing for terrorism, promoting or encouraging terrorism, or otherwise being concerned in terrorism. The amendment expands the meaning of promoting or encouraging terrorism. I believe that your Lordships will agree that promoting or encouraging carries along with it the concept of intentionally doing so. Intentionally promoting—that is what promoting is all about, as is encouraging.

Lord Davies of Coity: Having recognised that what he was stating was rather farfetched, does the noble Lord not agree that it does not recognise the realism that is portrayed in the Bill and this clause and that he is entering into a rather academic comparison rather than a realistic one?

Lord Thomas of Gresford: I do not agree with that. I think that there are two problems: the problem of terrorism and the problem of causing a proportion of the population of this country to be set apart from the rest of us. In other words, if you proscribed organisations that are peace-loving and said to its members—and I was referring to the consequences—"If you are or have been a member of this organisation, you have committed an offence and you could, in a trial by indictment, be sent to prison for up to 10 years; or you could no longer support this organisation or address any of its meetings", then there is a danger of causing people who would otherwise be perfectly law-abiding in their ordinary way to feel that the state is against them. That is what I am driving at. The problem of having a vague definition of promoting and encouraging terrorism, which means glorification in the form of "praise or celebration" without intention—and intention is the key, as the noble Lord, Lord Hurd, said—is that it will be a bad thing if it brings one into conflict with the criminal law and the possibility of punishment to the extent that this legislation provides. That is the purpose, as your Lordships will understand, of my opposing the clause.

Baroness Scotland of Asthal: I am grateful to the noble Lord for his indication that he understands and, indeed, agrees with the import of Clause 22 in as much as it enables us to identify an organisation which has a number of different names. I thank him for that acknowledgement.
	The organisation may cease to be known by one name. It may subsequently be discovered that the organisation has adopted another name, unknown prior to investigation into its activities. Clause 22 adds an important flexibility to the existing proscription regime. It entitles the Secretary of State to make an order certifying an organisation as being the same as one that is already proscribed. Normal appeal rights will apply, enabling organisations to raise the matter at the Proscribed Organisations Appeal Commission. That is an important addition of some degree of flexibility to the proscription regime. I give the noble Lord an example. Members of the Committee will remember that this was a provision which the noble Lord, Lord Carlile, described in his report as "entirely practical and sensible" in its current form. I respectfully agree with him, and I would not seek to alter it. The effect of this amendment would be to create uncertainty; but I understand that the noble Lord is raising the amendment only to allow us the opportunity to have this debate.
	The situation that one needs to consider is one in which a new organisation has sprung up from the ashes of one that was proscribed. It is not clear at this stage that the organisation is the same as the one that was proscribed, but in routine investigation of a common crime evidence emerges that proves that the organisation is indeed the same as one that was proscribed, and the identities of a number of members are revealed. At this stage, the police must act and arrest the members of the organisation in case a terrorist attack takes place. However, unless they are clearly entitled to argue independently in a court of law that the organisation is the same as the one that was proscribed, they cannot arrest those individuals, as there would be no basis on which to charge them. In order to charge, as no doubt noble Lords are aware, it is required that there is a reasonable chance of a conviction. Without the clear chance to argue that an organisation is indeed the same, the prosecution cannot consider that there is a reasonable chance of conviction, so the individuals will remain free and will probably flee the country before an order could be issued by the Secretary of State identifying the organisation as the same as one proscribed—so it is entirely practical.
	It is almost like a tracing that one would do in civil proceedings, where you would say, "Here they are; I traced them over to the next circumstances and they are indeed the same people". They cannot avoid detection simply by calling themselves by another name. This enables the prosecution, when the police obtain those facts, to act in a way that I am sure all noble Lords would wish them to. That is the reason why it is framed as it is. It has sufficient flexibility, but it allows people who should be caught to be caught.

Baroness Scotland of Asthal: I can assist the noble and learned Lord further. As I anticipated, in view of the concern raised by the noble and learned Lord on the previous occasion, and the reasons that he has given, this issue was raised again with the Lord Advocate who has indicated that he has not changed his view. As the noble and learned Lord has taken such trouble in his exposition of the detail about why he comes to a different view, I would be more than happy to ensure that the Lord Advocate has the benefit of reading Hansard to see what the noble and learned Lord has said. I invite the noble and learned Lord to consider that, unless and until that position changes, it looks as though he has a 2-1 victory.

Lord Thomas of Gresford: In moving Amendment No. 119, I shall speak also to Amendments Nos. 127 and 128. It may be helpful to our discussions on Amendments Nos. 121 and 122 if I set out the background in which these amendments are to be considered. I remind the Committee of the tradition of criminal investigation and charging in this country as opposed to continental systems. The police or other investigating authorities make all the necessary inquiries to put a prima facie case together. Once that has been done, there are reasonable grounds for arrest. After arrest the common law approach is to interrogate the suspect about the evidence so collected. Within a limited period—usually 48 hours but it may be extended a little by the court—the person who has been arrested is given an opportunity to explain the evidence that is put before him. If he satisfies the investigators, he is released. If his interrogation casts doubt on the strength of the case, he will usually be bailed to return to the police station when further investigations have been completed. That is the system of police bail. If he fails to give any explanation at all or an explanation that casts doubt upon the case that the police have put before him, he is charged and certain safeguards necessary to a fair trial are put into effect. That is consistent with the presumption of innocence which I have not heard any Member of this House challenge.
	The person who has been charged is brought before a district judge to determine whether he be remanded in custody or released on bail by the court. The decision about bail depends upon the judge's assessment of the seriousness of the case, the risks of the defendant not turning up for trial and so on. In any event, the evidence and the documentation will be fully disclosed to him, and from the moment that he is charged, or very shortly afterwards, he is no longer in the custody of the police, except in the very unusual circumstances when the gaols of this country are full.
	In every serious case, it is customary for the police's scientific and technical investigations to continue after charge. There may be a misapprehension that they stop at that point, but they do not. A person may be questioned—there is no absolute bar to a person who has been charged being questioned further after charge—but only on the basis set out in this amendment; namely, to prevent harm to the public or in the interests of justice. By this time, the person has usually been remanded in custody to a prison and, from time to time, the police go to the prison for further questioning. If such further questioning takes place, it will be closely scrutinised at trial to see whether it was truly for the purpose of preventing harm to the public or in the interest of justice or whether it was oppressive. During the period between remand and trial, notices of further evidence will be served in which the product of, for example, overseas investigations, telephone evidence and DNA and other scientific evidence, such as fingerprints, will be disclosed to the defence. This happens all the way up to trial and, indeed, on occasion, after the trial has begun.
	The system that we depend upon for a fair trial copes with all of this. Once there is enough evidence to charge somebody, a great deal of the prosecution case will be put together after charge and before trial. There is no upper limit to the time during which these investigations continue. Further evidence, whether scientific, technical or whatever, may well be collected, collated and served in 14, 50, 100, 200 or 300 days if necessary. It depends entirely upon the nature of the investigation and the sort of evidence that has to be obtained.
	By reason of the serious threat posed by terrorism, this system was adapted, in particular by the Terrorism Act 2000. Section 41 of the Terrorism Act permits a constable to arrest without a warrant a person whom he reasonably suspects of being a terrorist. When the 2000 Act was passed, it initially stated that the person must be released within 48 hours of arrest, but designated district judges could issue a warrant of further detention under the powers given by Schedule 8 to the Act.
	At first, that warrant of further detention, which is the subject of all the conflict in this Bill, was for a period of further detention of seven days. In the Criminal Justice Act 2003, against a great deal of opposition, that was extended to 14 days.
	In order to issue a warrant for further detention, whether for seven, 14, 28 or whatever days, the judge has to be satisfied that there are reasonable grounds for believing that the further detention is necessary, "to obtain relevant evidence"—I stress those words because one of my amendments goes to the definition of "relevant evidence—
	"whether by questioning him or otherwise".
	That is the first thing: is the detention necessary? He must also be satisfied that the investigation is being conducted diligently and expeditiously.
	The proposal to amend the period of further detention, and to extend it to 28 days, has been decided in another place. As I indicated at Second Reading, we do not propose to contest that. It would obviously be unacceptable for a person who is detained for such an extended period like that to be subject to daily interrogation on a wide basis. It is precisely that sort of questioning—if a person is questioned day after day—which leads to oppressive methods of questioning; indeed, it may even be torture. It is no coincidence that the major miscarriages of justice, which have caused people to doubt the criminal justice system in this country and its ability to protect the innocent, have occurred in the area of terrorist crime. Although lawyers are attacked from various quarters in the Chamber, some of us have experience of terrorist cases—none more so than the noble Baroness, Lady Kennedy of The Shaws.
	The purpose of Amendment No. 119 is to give judicial oversight to the nature of any further questioning that may take place after charge and during a period of extended detention. A policeman, a superintendent or another investigator, who applies for a warrant of further detention for 28 days, will have to explain to the judge that any further questioning will be of the nature set out in that amendment—if my amendment is accepted. In other words, it would be,
	"confined to the prevention of harm to the public, or in the interests of justice, to the relevant evidence so obtained or preserved".
	So the purpose of my amendment is to say that if you extend the period of detention, the person detained cannot be questioned widely during that period, but he can be questioned about any matters—whether it be scientific evidence or whatever—which those investigating have turned up. The judge would make an order extending the period of further detention to 28 days on the basis that the questioning would be of that order.
	Amendments Nos. 127 and 128 are designed to exclude the limited definition of "relevant evidence", which pops up in Part 2 of Schedule 8 of the 2000 Act. For the purposes of Part 3, where we are dealing with extended periods of detention, the nature of the relevant evidence is defined. It is precisely, as Members of the Committee will see if they look at that amendment, the evidence which the Government have said it takes time to collect and to collate. It includes investigations abroad, telephone evidence, computer files and forensic and scientific evidence. It does not include evidence obtained from witness statements and from routine police investigations, which should have gone on beforehand in order to build up the case against the arrested person before he is charged.
	Why the push to extend the warrant of further detention to 90 days, as was the Government's original intention? I hope that the Committee has heard my outline and appreciated that there is no logic to that. The figure of 90 days is not magic at all. The investigation may continue for all of the period up to trial, which could well exceed the 90-day period; it could extend for more than a year. Almost 500 people who were released without charge of the 850 arrested under the Terrorism Act were released within 14 days. We have no evidence that any one of those released would have been charged if the police had had more time. So far as I am aware, not one of them has been picked up later following further investigation, arrested and charged.
	The problem with the 90 days is that it enables the police to arrest on rumour, suspicion or intercept evidence—which every other country finds admissible in evidence but we do not. In other words, it pushes back arrest to well before investigation has got under way. That is quite contrary to the traditions of investigation in this country. A person may be arrested on suspicion or rumour and then the serious investigation starts. If there is evidence that would justify a charge, the investigators—the police—would not hold that person for 90 days and then charge him. When there is sufficient evidence to charge, he must be charged. He may be there under a warrant of further detention; the police may come to the conclusion that he should be charged on day two, day 10 or day 15.

Lord Imbert: The amendment to Clause 23, relating to the period a suspected terrorist may be held before charge, is one of the most important clauses in the Bill. If the 28 days agreed to in another place is accepted, and the maximum of 90 days, with weekly robust judicial oversight, as originally proposed, is not permitted, it must be accepted, by the police, by the press, by politicians, and thereafter by the public, that some terrorists who are actively planning death and destruction may go free and innocent lives may well be lost. However, it must be conceded that there is also a risk, however small it might be, than an innocent person is held for up to a maximum—an absolute maximum—of 90 days in custody before charge, trial or release.
	The balance between the risk of incarceration of an innocent person and thereby the denial of that person's human rights must be weighed against the awful risk that failure to allow the investigating body the opportunity fully to investigate suspected terrorists or information about planned terrorist acts could result in the deaths and maiming of those who should also have the human right not to be killed or disabled for life. I respectfully draw the Committee's attention to the man and the young woman who lost lower limbs in the terrorist acts of 7 July in London and will spend the rest of their lives in wheelchairs, as will some of those who survived the bombing of the train in Madrid some two years ago. Is this what we are prepared to gamble with for our children and relatives?
	It may be thought impertinent or intemperate for a relatively new Member of your Lordships' House to express such forthright views but, on behalf of the law abiding and the man on the Clapham omnibus, I have to say, "Wake up England. We are under threat, but we have a choice: properly and thoroughly to investigate the suspected terrorist or sit back in our nice warm houses or Chamber with our fingers crossed, hoping that it will not happen to our own children, our neighbours' children, or to anyone we know". And if it should, do we then just say, "So sorry about that. I thought 28 days would be sufficient for police to make inquiries, but we didn't believe them. It must be their fault for taking so long to complete their investigations. It's not my fault."? But it may well be if we do not return to the 90 days originally proposed.
	To allow 14, or even 28 days, for a major and complex inquiry is woefully inadequate. Let me give a couple of examples. I must tread carefully, as some cases are still sub judice. I am, however, no longer constrained on the first example, known as the ricin plot. This inquiry began in 2002 in London; it was a wide-ranging inquiry throughout the country into a network of Algerian terrorists. The investigation, which ran over several months, in not only the UK but in no fewer than 26—yes, 26—foreign jurisdictions, in addition to gathering evidence about their terrorist activities, uncovered other criminal activity involving their use of forged documents, credit card fraud and the like.
	Because of our pre-charge time limits, police were obliged to charge some of the men only with the lesser offences relating to forged documents and credit card fraud. If police had been given more time before charging or release became obligatory, it is probable that the suspect who fled the country, having been given bail on the lesser criminal charges, and who eventually proved to have been a prime conspirator, would have stood trial in this country for the major terrorist offences, and the outcome of the trial process might have been very different.
	Many of the 26 foreign jurisdictions involved—especially those with an inquisitorial system—work to extended time scales and do not understand the urgent need to respond to our inquiries within the time constraints for investigation in this country. Is it not ironic that a former pop star called Gary Glitter can be held in custody for up to four months in Thailand, having been accused of the offence of unlawful sexual intercourse, where all the forensic evidence, the accused and, as I understand it, the complainants, are in one jurisdiction? That perhaps indicates sharply the reason for the lack of urgency in some countries when our police and security services are trying to wrap up a complicated terrorist case with global dimensions in just a matter of days.

Lord Imbert: Thank you. I ask noble Lords to come with me on a very short imaginary journey that closely reflects the problems frequently encountered by anti-terrorist investigators. Imagine that you are the senior anti-terrorist squad investigator. You receive information via a telephone intercept that a group of men in various parts of the country are planning terrorist attacks on the Houses of Parliament and British embassies in a number of Asian and African countries. Despite the valiant efforts of the noble and learned Lord, Lord Lloyd, and other noble Lords, this intercept information cannot be used in evidence. CBRN possibilities have been discussed between the two main conspirators and the attacks are to be carried out in three months' time. The information, I think you will agree, cannot be ignored and must be acted upon to prevent possible large-scale loss of life. Surveillance is started on two of the suspects and during the next eight weeks they meet various other people; all unknown to the security services or police in this country. Five key addresses have been identified, but it is not known where the explosives are stored or from where they have been obtained, although the suspects' conversations indicate they may be from abroad. The men are thought to be illegal immigrants and each is living on two false identities.
	The police officers working under your direction arrest 15 people under Prevention of Terrorism Act warrants in six different areas of the country. Each arrest requires time-consuming custody procedures, transportation to a secure custody suite in London, the forensic examination of prisoners and the taking of evidential samples. Each of the 15 prisoners has at least one false passport. The initial procedure takes about eight hours for each person and, although some of the procedures can be carried out simultaneously, the booking in with the custody officers must be done individually. The fingerprints are sent to five different countries but, as an experienced investigator, you know that the earliest reply will come in something like two to three months and will be two little letters—"u/i"—which means "unable to identify".
	In this journey I cannot be specific, for obvious reasons, about other countries' swiftness of reply, but I ask your Lordships to imagine your view—as a senior investigating officer—if the countries are, say: Algeria, Tunisia, Bangladesh, Kashmir and Indonesia. I am sure that you would be most unhappy about that. The example, I stress, for obvious reasons must purely hypothetical, and is given only to help noble Lords to understand some of the time constraints and extreme difficulties with which investigators are regularly faced. But you are not finished yet!
	Two firms of solicitors represent all the detained men. Their representatives are not available immediately and police wait four hours for one and five for the other. The initial consultations with each of their clients lasts, on average, four to five hours; each disclosure package given to the legal representatives requires lengthy consultations with the detainees. This is essential procedure to which the detainees are fully and rightly entitled. The clock did not stop running while the detainees were with their legal advisers, but it has taken up much valuable time then available to the officers to conduct their own interviews and inquiries. All the men say that they need an interpreter. Reliable interpreters are a scarce resource and some of the men speak in a dialect not easily recognised or understood by the interpreters. In addition, all the men need to be allowed to observe prayer five times a day. You are informed that a vast amount of material has been recovered from the addresses in various parts of the country. This is being properly labelled with the date, time and place where it was discovered and the name of the officer making the discovery who will be required to make a statement. Some 90 disk drives have been recovered and much of the content has been encrypted. The relevance of some 200 pages of documents cannot be assessed until they are translated and analysed for evidential value. It cannot be known at this stage which suspects, if any, they should be put to until they have been translated. The interpreters are human and they are very tired, having been working almost non-stop on translation and interpreting duties for the past two weeks. Although you yourself have been working day and night since day one of the investigation you no longer look at the clock but at the calendar and, as you do so, you receive a request from the Commissioner or Chief Constable asking how the inquiry is progressing and reminding you that, despite the fact that three more suspect addresses have been located and will need to be searched, tomorrow is the 29th day of the investigation.
	Now I ask your Lordships to state your action. Do you consider public safety first, as the police must, or do you respect the civil rights of the suspects and release them? Give full reasons for your action, noting that it will be subjected to many intellectual and judicial debates in public, in the press, and, of course, in Parliament, at some time in the future when you are trying desperately to wrestle with yet another and even more compelling terrorist investigation.
	I finish only by emphasising that to apply to keep a suspect in custody for longer than a month and, maybe, for up to 90 days, will apply only in the most exceptional and complex cases. The police do not actually like keeping people in custody, and certainly not those who are innocent. That is not only an infringement of that person's human rights but also spells trouble for the officers. The police, I am assured, fully support and, indeed, welcome, the prospect of robust judicial oversight of any applications for extended detention before charge. I urge your Lordships to support the amendment in the names of the noble Baronesses, Lady Ramsay and Lady Park, to which I have also added my name.

Lord Fraser of Carmyllie: I am implacably opposed to this amendment, not because I wish to deliver one black eye or two black eyes to the Prime Minister or cover his body with bruises, but because I believe that if we are going to surrender any part of our civil liberties we need to be absolutely sure that there is a proper justification for that change. In my view, what is happening here is that, without any serious argument, we are about to surrender one of the most important parts of our civil liberties for no real justification at all.
	For reasons that do not matter, I spent a large part of my schooling time in South Africa. A number of my contemporaries were detained under the Suppression of Communism Acts for 90 days because they adhered to the quaint idea that, in the sight of God, all races were equal. Such detention seemed to me to be an absurdity. The only Marx they knew was Groucho, not Karl; but they were detained under the so-called Suppression of Communism Act, which meant that as long as you were opposed to the appalling apartheid regime of South Africa at the time, you were a communist. It was as simple an equation as that.
	I see no absolutely no justification for the extension of a power of detention for 90 days without trial, and I do not care—I am sorry that the noble and learned Lord, Lord Lloyd, has gone—whether it is with or without judicial control. That seems to me quite an intolerable state of affairs, and that remains my implacable view.
	I am delighted to say that he is not in the Chamber this evening, but the son of a Member of your Lordships' House hacked into the Pentagon in an evening. I really cannot believe that it takes the police forces of the United Kingdom, and particularly the Metropolitan Police, 90 days to work out encrypted messages in whatever language they are. I would be very surprised if they cannot work out in 36 to 48 hours what is there and what is of evidential value. I would be astonished if they cannot do that. And I am absolutely confident that within 28 days—

Lord Harris of Haringey: I am grateful to the noble and learned Lord for giving way. I have discussed precisely this point with a number of senior officials in the Metropolitan Police. They report that some of the material—in one instance 650 gigabytes of material was seized—is so heavily encrypted that the best code-breaking experts in the country cannot find a way of getting into it on the sort of timescale that is required. It is a very slow, long and laborious process. The technical skills that are now involved and the technical skills that are now available to those who are planning and organising terror are of such a level that it is not simply a question of applying the crossword-solving brain that may have been appropriate in the past. This is about very high levels of encryption with very complicated keys that cannot simply be broken on the basis of a few hours work.

Lord Condon: It is with great reluctance that I find myself unable to wholeheartedly support the amendment put forward today and, on a day of unusual disagreements in your Lordships' House, I add to the unusual circumstances by finding myself for the first time in my life not wholeheartedly supporting something put forward by the noble Lord, Lord Imbert. I also apologise for not making this point on Second Reading, where I had hoped to speak, but I was recovering from a hospital admission and was unable to travel.
	The reason why I am reluctant to support the amendment—noble Lords may think it strange as I am a former commissioner—is that I fear that on balance, and it is a very fine balance, it may be counterproductive in the sense of encouraging martyrdom rather than preventing it. That is my fear. As other noble Lords have said, when asked, "How can we improve the fight against terrorism?" the police service was absolutely right to advocate what it believed was right—an extension of detention without charge. I make no criticism of my former colleagues; I believe that they were sincere, they were well motivated and they were right to advocate what from their point of view was the right thing to do.
	However, as has already been said this afternoon, the question for your Lordships' House and the other place is a wider question: having heard what the police and intelligence agencies are advocating, what does this House and the other place feel is in the long-term benefit of the country in the fight against terrorism? Even though in one, two or three individual cases an extension to 90 days may help, my fear is what that might generate in terms of helping in the propaganda of terrorism.
	Often there is a misunderstanding about what al-Qaeda is. It is not a finite list of several hundred people and, once we have ticked them off and got them before a court and convicted, we will not have stopped terrorism. In Arabic, al-Qaeda means many things. One of its main meanings is a way of looking at life and doing things—a series of tenets and principles, advocating the witness of martyrdom through violent means.
	The huge publicity that has surrounded this debate has already generated enormous fear in law-abiding communities in parts of this country. If we now go back and make it look as though we are going to challenge yet again the point of 28 days that we have reached, I fear that it will play into the hands of the propagandists, who will encourage young men and women—to all other intents and purposes, they are good people—to be misguided, brainwashed and induced into acts of martyrdom. This may be only a small part of the tipping point that leads them to martyrdom. But those who advocate terrorism and challenging the values of the West will point to this provision, if we go to 90 days, as illustrating why they must challenge our values and norms.
	Also, I fear that the debate is almost being portrayed as our either having up to 90 days or doing nothing. This is not a static debate; we do not freeze the action at this point. I encourage the notion that we try up to 28 days, and look at what other measures we can bring to bear to support the police and the other agencies. We need to revisit the admissibility of interception evidence, and the police and criminal evidence rules on interrogation. We can look at many other innovative ways of supporting the fight against terrorism without playing into the hands of the radical fundamentalists.

Baroness Symons of Vernham Dean: Ninety days gives us a much better shot than 28.
	I have not even touched on the points about the fiercely independent different security systems that run around all the countries in question. We in the United Kingdom are peculiarly well placed; perhaps we do not recognise it as much as we should. We have brought together our agencies—the SIS, the DIS, the GCHQ and the listening agencies, the Home Office, the Foreign Office, and the police—to deal with terrorism on a joint basis in a pool of expertise, working together day by day. That resource is unparalleled in any other jurisdiction, certainly in any of those with which we deal, even when they are very sophisticated. On the basis of my experience, 28 days is completely inadequate—not to deal with encryption, but to deal with a serious discussion about individuals who are of real concern to us.
	We have to ask ourselves what our real alternatives are. Like many Members of the Committee, I have experienced a number of terrorist incidents. As a Minister, the question that always arose was, "What did the Government know about the possibility of this terrorist action?". People have a right to expect that their Government are in a position to do everything that they can to secure their safety. I dread the question of what the Government knew being answered, "The Government actually knew a great deal, but could not adduce the evidence within the 28 days that they were permitted". I am bound to say that that is a completely unrealistic target.

Lord Lyell of Markyate: No, I have never been in GCHQ and I cannot answer that question. I hope that we have plenty. If we do not, it is the duty of any government to ensure that we do. That is the right way to defend ourselves.
	One of the reasons, which was not quite so strong, among the nine given by the assistant commissioner, although I stand to be corrected, was that it took a fortnight to get into the bomb factory in Leeds. My recollection of Northern Ireland was that we had highly sophisticated and very well-staffed forensic units that were capable of getting into any bomb factory in a very short time indeed. We need to ensure that we have that capability.

Lord Lyell of Markyate: The noble Lord is extremely well-informed. I now recall him explaining that in a previous debate, quite rightly. But my point is that you must contrast that with the level of expertise which we developed not in Leeds, where obviously we need to develop it, but in Northern Ireland, where I am confident—although I will be corrected by those in this House with closer experience, but I have visited the forensic units—that we were much more up to speed on this important area at that time and we need to get up to speed.

Lord Brooke of Alverthorpe: I am one who did not intend to speak in this debate, but I have felt moved to do so by some of the contributions. I take a slightly different line. My answer to the questions would be that 60 people have been killed by suicide bombers, something that we have never encountered previously in this country. I feel the Committee has great merits in mounting a debate of this nature. We bring to the fore our great experience, even more so than one finds at the other end of the Palace. To a degree, we also expose our weakness that we are not always up to date with all that is happening. No one in this House, other than Ministers or those who recently were Ministers, has had experience of dealing with suicide bombers.
	I am confused about whether I should go for 28 days, 60 days or 90 days. I suspect that I reflect the views of many parliamentarians. When I am in difficulties I look to the parliamentary system to assist me. There is one area about which I criticise the Government. The bombings were in July, and we had much talk about the likely new legislation that is needed. From July until the legislation arrived in the Commons there was time to set up proper pre-legislative scrutiny involving all parties, when evidence could have been taken from those with the facts, when representatives of the police could have come before us, and when we could have heard from people at GCHQ who spend their lives dealing with issues of this nature. I confess that I am absolutely staggered to hear that a former Attorney-General of this country had never been into GCHQ to understand the work undertaken there. It really is quite scandalous to hear that in quite recent years Ministers with positions of power and responsibility for security did not know about that.
	We have to look at the mechanisms whereby we endeavour to deal with issues of this nature. I put to the Minister a point that I have raised within the confines of Labour Peer debates. Why have we not had proper pre-legislative scrutiny? Can we have an assurance that when we deal with issues of this significance in the future we will not have to wait for the Home Affairs Committee, which is now taking detailed evidence from witnesses with appropriate current experience, to deal with these problems? I want to know what the Government will do with the report of the Home Affairs Select Committee when it is produced in due course.
	I am unsure of where I stand. When in doubt I tend, like the man or woman in the street, who do not have direct representation here, to support the establishment and the authorities. On balance, I tend, even though the police make mistakes, to give them the benefit of the doubt and I will go with them. In the main, I also go with the judiciary and I go with what comes out of Whitehall. From time to time one has bad experiences which worries one, but none the less one comes back to fundamentals. Therefore, had I been at voting at the other end, I would have gone for 90 days. If we have a vote here, I will go for 90 days, because I believe that that reflects the view of the bulk of people in the country. We should not ignore that. We ignore that at our peril, as all politicians do. I would then go for 60 days and, if we do not win on 60 days, we will be left with 28 days. I worry about when someone from the Muslim community—who the Muslim community would not wish to support—is taken in but is released on the 29th day and a bomb goes off somewhere. That is what I worry about. We should be concerned about that because it is what concerns the great British public.
	My questions are about process and the way that we legislate. Is this the right way to do it? I do not believe that it is. I believe that we should be looking for better ways in future. I remind my friends on the Liberal Democrat and Opposition Benches that in 2000 they opposed the Regulation of Investigatory Powers Act, in which Charles Clarke sought authority to intercept, and we now discover that it is through intercept that we have our greatest access to the information that we need to trace these terrorists. Members of the Committee should remember that. It is the kind of issue that I have in the back of my mind when, with the limited information I have, I make a judgment on which way to vote on an issue such as this.

Lord Harris of Haringey: A number of noble Lords have said that this is a matter of judgment. The noble Lord, Lord Condon, talked about it being a fine balance. The right reverend Prelate talked about making a judgment. When, as individual Members of your Lordships' House, we make our judgment, we have to look at what we are weighing. On the one side, we have the professional view expressed by the police service which is involved in combating terrorism on a day-to-day basis. On the same side, we have the independent judgment of the noble Lord, Lord Carlile, who is charged with the duty of overseeing the working of terrorism legislation. He has access to all sorts of information that very few noble Lords have had access to. That is an important balance on one side of the argument. It is a question of what we are prepared to do in terms of substituting it.
	We have heard a variety of arguments today. Some of them have been extremely thin. I listened with some surprise to the views being expressed by the noble and learned Lord, Lord Fraser. This is not analogous to the South African pass laws. This is about holding people while investigations take place, prior to bring charges, for up to 90 days. It is not analogous. It is subject to judicial oversight, which is something the noble and learned Lord brushed aside. I thought noble and learned Lords had a precious belief in the value of judicial oversight. He brushed it aside and said that it did not matter. I believe that it does matter and that this is different. Then he talked, in trivialising words, about the police employing more 10 year-olds to decrypt data. The reality is that the data that is being seized is encrypted to an incredibly high level and it requires the best experts available. The noble Baroness, Lady Kennedy, is right to say that there is an inadequate number of police officers with the necessary technical skills. The fact remains that as police officers are trained up and become useful, they are then poached by the private sector—Microsoft and other companies—with salaries three times that which the police service is able to offer. That needs to be addressed, and I am sure that it will be. The reality is that we are not just talking about police service resources that are being applied to data decryption; we are talking about the resources available to the state, and it is finding it difficult to handle this material.
	The noble Baroness, Lady Park, talked about the problem of sequencing. In my earlier intervention, I mentioned the bomb factory found in July and the length of time it took to get access to it, to search the property and seize the computers containing an enormous amount of encrypted data—some of it encrypted from Arabic—which then needed to be transcribed, understood, assessed and gone through. Investigation has to take place in foreign jurisdictions. The noble Lord, Lord Imbert, talked of a case that involved 26 separate jurisdictions. These are not simple matters. That is why the professional judgment of the police service was that 14 days was grotesquely inadequate and why it argued that its best professional view was that the period should be 90 days.
	These are fine balances and we must exercise our judgment, but fundamental to all of this is that we are talking about a type of terrorist whose objective is not political, not to persuade anyone, but is to inflict mass casualties. They have access to things that can inflict far greater casualties than we are used to in this context. It is the context of suicide bombers who are proud to give their lives as part of the exercise. That is why the police must intervene at an earlier stage in investigations than has hitherto been the case.
	My noble friend Lord Ahmed made much of the fact that there were 800 arrests and only 23 convictions. Of course, some of the cases are still before the courts or are yet to reach them. I put to noble Lords the extent to which some of the people who were arrested have had to be released because it was necessary to intervene at such an early stage. I say to the noble Lord, Lord Condon, and to my noble friend Lord Ahmed that if we are rightly concerned about the impact of our actions on the Muslim community—particularly on young Muslims, because we want to avoid a situation in which more young people are drawn into the net of those who would persuade them to be suicide bombers—we must rightly be concerned about whether people are held inappropriately. But the surest way of convincing those young people that something is wrong is when so many people have to be released because the correct charges cannot be brought and the evidence that could convict them in court cannot be obtained. I believe that is partly why the Government supported the professional judgment of the police service when it came forward and said that 90 days are required.
	This is a judgment, and we do not want to encourage martyrdom. That is why we must make clear that it is up to 90 days in exceptional circumstances in the context of a background of other measures that will reassure the Muslim community in particular, and young people from those communities, that they are part of our society and that we value them. Only if we do that can we take this forward. This is about a long-term process. It is not an easy process, but unless we take note of the serious professional judgment of the police service, we are in danger of creating a situation in which we will not be able to hold our heads up about what we have done to combat terrorism.

Baroness Kennedy of The Shaws: Can I go back to the point I was making? If we really do create injustice by arresting people, the sense of injustice that detaining them for 90 days and then releasing them without charge will create among the community will be considerable. We need that community because at the moment we are trying to build up intelligence within that community, and people within that community are going to help us to prevent those kinds of acts that took place on 7 July. So the perceptions of injustice that I am talking about are the very thing that was experienced by the Irish community in Britain back when we were dealing with that terrorism.
	Before I forget, I say to the noble Lord, Lord Imbert, before I forget, that I hope he has the courage to repeat what he said outside this Chamber about the ricin trial. Here he is covered by parliamentary privilege, but if he repeats it outside this Chamber, he may find that he is subject to litigation because there was no ricin. I repeat: there was no ricin. People were arrested and the public was told that ricin was found. At the time there were discussions about biological weapons, but no ricin was ever found. Those people were acquitted and it should be with care that the suggestion is made that this was a trial about ricin, or that those people were wrongly acquitted.
	I go back to a hypothesis that nobody ever talks about. What about the hypothesis of a young Muslim man being detained on the basis that there is intelligence that someone has said that he, with friends, is talking about taking part in some kind of terrorist incident in Britain; and that that comes from inside the British Muslim communities? We always get the impression that everything operates from a standing start: that the police are going to operate from a standing start, that there will be an arrest and that there is nothing but intelligence, but they cannot use that. I assure noble Lords that that is rarely the case in criminal cases, because what the police would do with that kind of information is immediately to tap the phone—it might not be used in court, but they would hear conversations. They can bug and the transcripts of that can and will be used in court. They can bug the cars; they can look at who his associates are; and they can survey him for a number of days. If they choose not to do that and they go into his house, they can then swab for explosives or any kind of biological entities. They can then search it for any kind of lists or anything associating him with terrorism. They can go through his mobile phone, which, as we have heard, can give forth information fairly quickly. And of course his computer can be taken for all the material that is not encrypted; and encryption is pretty rare.
	Suppose at that point, you have got him in and you have kept him. You have gone through all that and you have got 14 days. But you are now allowed to keep him for up to 90 days, just to carry on seeing what might turn up. Do you think that that is justice, when it may be that somebody in the community just made it up? What does that do to the many people who learn of it?
	Collateral damage of that kind is not something we have ever considered as acceptable within our legal system. Our legal principles should matter to us. Before we go down this road we should be looking for alternatives. Many alternatives have been suggested. I am not going to mitigate for the noble and learned Lord, Lord Fraser, but we heard him mentioning how he had friends who experienced detention without trial in South Africa. Whether or not we like it, and whether or not the comparison is accurate, 90 days has a resonance historically. For the communities we are dealing with it has a resonance historically. So, the Muslim community is feeling that laws that were never introduced before will be ones that they and their children will be subjected to.
	I spent today at a conference with the Muslim community. The Muslim community is absolutely wretched over what is happening. This legislation is at the heart of its dejection. When it heard that we were revisiting the 90 days bit of this legislation it was really horrified. All I can say is that if we want to send out messages to the Muslim community that they are not part, that they are different and that they will have special laws created for them, I am afraid we are going the right way about it.
	The voice of sense in this debate, so far as I am concerned, was that of the noble Lord, Lord Condon, who said, "Yes, of course we are anxious about terrorism. Of course we have to give the police every resource they need that is viable, while at the same time protecting liberty and ensuring we do not alienate the very communities that we need to help us in countering this terrorism". So, rather than rush to this notion that we can make good for the Prime Minister in this Chamber, let us just remember that the Prime Minister got it very wrong on the intelligence leading up to the war, and that is why there is a low level of trust. That is why, there is not the same level of confidence as there was in the days of Lord Callaghan, when he was Prime Minister. We should be thinking about that—the ways in which intelligence can get it so badly wrong, and how people will end up with—what are we going to call it?—collateral damage. We are worth more than that. Britain has stood for liberty in the world. Let us continue to do so.

Lord Foulkes of Cumnock: Before the Minister replies, perhaps I may say a few words as the fourth signatory to the amendment. I must confess that I am the most recent signatory, but I should like to say a few words.
	Over the weekend, I was going through some old letters and I came across a letter from 1993 from the noble Baroness, Lady Kennedy of the Shaws. It was a lovely letter, a kindly letter. It was praising me. She was praising me for the work that I had done with the Socialist International in Chile. I took great comfort from that. She said that she recognised the work that I had done on civil rights. I say to the noble Baroness, Lady Kennedy of the Shaws—my noble friend—that I have not changed since then. I am exactly the same person with exactly the same views and concerns about civil liberties, but I did not put my name to the amendment with hesitation or reluctance; I put it with enthusiasm and alacrity because I strongly believe that is absolutely the right thing to do and we must ask the House of Commons to think again. I shall return to that in just a moment.
	I criticise the Government just for a moment. That is not something that I do regularly or something that I do with pleasure but I feel strongly about it. The Government got off on the wrong foot trying to explain what they plan and want to do. All the concentration was on 90 days. That has happened in this debate as well; nearly everyone—many noble Lords—have been talking about 90 days. The correct expression is "up to 90 days". That has not been made clear enough from the start. The Government had explained that, after the 14 days, we are talking about discrete periods of seven days. Then, as a number of noble Lords said, a judge must be convinced. I find it implicit but astonishing in what the noble Baroness, Lady Kennedy of The Shaws, said, that she does not trust one of her colleagues, a judge, to make the right judgment.

Lord Foulkes of Cumnock: That is a disgraceful slur on the police. It is absolutely clear that they argued the case for 90 days effectively—I am falling into my own trap, for up to 90 days. But each time, that senior judge must be convinced. When we were discussing the amendment of the noble and learned Lord, Lord Lloyd, earlier, we were talking about barristers appearing before the judge and putting the case on both sides of the argument. It is clear that the judge would consider all the evidence.
	I want briefly to concentrate on why we should ask the House of Commons to think again. In my short time in this House, I have said on two or three occasions—especially as a former Member of the other place for a long time—that I recognise the supremacy of that House. Ultimately, when a decision is made by that House, I think that we should accept it. However, I think that we need to ask it to think again.
	I shall give just two reasons. First, the expert on this is the independent reviewer, the noble Lord, Lord Carlile. After the publication of his report and after the decision in the House of Commons, the noble Lord, Lord Carlile, added to what he had said and said that he expected only one or two people to require up to the full 90 days. That is a significant development that had not been made clear when the House of Commons made that decision.
	My second point is very important. No one has made it; no one has even alluded to it in our debate today. The Conservative Party now has a new leader. The attitude of that leader is very different from his predecessor, Michael Howard. He wants to go by consensus. He does not want to oppose for the sake of opposition; he does not want to be opportunist. There was nothing more opportunistic than the vote that took place in the House of Commons. If you look at the line-up, the Tories, on a Whip, going against something that their normal instinct would be to support, went into the Lobby with people—

Lord Foulkes of Cumnock: Thank you very much. I said that I was going to be brief.
	Finally, my noble friend, Lady Kennedy of The Shaws, said that we in this country put a premium on liberty. During the course of this debate, nearly everyone has said that this is a matter of balance, of judgment. The right reverend Prelate put it best of all: there is a judgment; there is a balance. There is a balance between liberty and life; between loss of liberty and loss of life. Sixty people died. They will never return. To have one or two people perhaps—perhaps—held in gaol for a few days extra: that loss of liberty. Which is more important? That loss of liberty or the loss of life? I know which side I am on.

Lord Thomas of Gresford: We should perhaps get towards the end of what has been a very serious and important debate that has aroused passions on both sides. I do not intend to do much more than try briefly to sum up the argument.
	The danger is that people should pose the wrong question. The noble Lord, Lord Foulkes, and those who earlier supported the 90-day option seem to me to be posing the wrong question. It is a balance; it is a judgment; but it is not a balance between the human rights of an individual versus the safety of the public. That is not the issue. The question is much wider and deeper than that.
	The first question is: what causes people to become terrorists at all? The noble Lord, Lord Ahmed, has spoken movingly of the effect of the legislation on his community. We know that there is alienation out there; we know that alienation has been caused by racial and religious tensions. I need not develop that point; we know that it is there. The Bill does nothing to improve the sense of alienation felt by the people to whom the noble Lord, Lord Ahmed, referred. The sense of justice that the noble Baroness, Lady Kennedy, talked about is critical. Whatever part of the community they come from, people should feel that they will have justice, as much as the next man. The noble Lord, Lord Condon, put it absolutely right when he said that this law is counterproductive and the issue is: what will it generate? Those are wise words.
	The question that I pose is: what helps catch terrorists? Intelligence. The noble Lord, Lord Lyell, said that. Intelligence comes from within a community that feels a part of the whole community. If there is alienation, the people within that community will protect their own; whereas they should be protecting the whole of us. It is vital that people remember the importance of intelligence in stopping all this.
	The example surely was in Northern Ireland in the early 1970s when internment was introduced. It ran for about 18 months and it came to an end. I think that the noble Lord, Lord Merlyn-Rees, was the Minister who stopped it. It was stopped because it fractured the community and it meant that no intelligence was coming out of that community. It caused the sense of injustice and alienation to continue. Unfortunately, those feelings and that fracture continued for many years after that.
	My third question is: what is the utility of 90 days? It is meaningless within the criminal investigation process. The noble Baroness, Lady Symons, talked about the problems of investigations abroad, dealing with foreign governments, language and police forces abroad. Does she really believe that those sorts of difficulties can be solved in 90 days? That has never been my experience in 40 years at the Bar. If there is a foreign problem, it runs and runs, sometimes into the trial itself. All the other investigations—into encrypted computer disks, DNA, scientific discoveries and so on—and forensic examinations go on. There is an assumption on the part of those who ask for 90 days that everything stops at the point of charge but that is absolutely not the case. All that is needed is sufficient evidence to charge and the police investigation continues. All the lengthy and difficult matters will be dealt with eventually by trial; they do not cease.
	The 90-day detention period may not be 90 days for some, as some noble Lords have said, because once there is sufficient evidence to charge somebody you have to charge them; you cannot hold back. So the people who serve 90 days are those most likely to be released at the end of that period. During that period, if you hold somebody while waiting for something to turn up, you are doing a terrible thing to them and to their families. Do not ignore the fact that 500 of the people arrested under the Terrorism Act were released without any charge.
	My final question is: are the existing powers of the police being used? Mention has been made of the ricin case. Had the noble Baroness, Lady Kennedy of The Shaws, not referred to it, I would have made the point that no ricin was ever discovered. There was one person about whom the complaint has been made who went abroad when he was given bail having been charged with a minor offence. He was in police custody for two days, not the 14 days that the police could have had to investigate the matter longer and build up the case if there was more evidence to come in. We shall have to look later at what the intelligence about the 7 July bombers was and whether there were earlier opportunities during which those bombers, or some of them, could have been arrested. I do not propose to develop that matter but I am sure that it will come to your Lordships' attention in due course.
	I agree totally with the noble Lord, Lord Elton, who talked about the fractured society—I have already pinched the phrase. We must avoid that at all costs. We are at a crucial time for our generation, just as those who went before us faced crucial times and crucial decisions. If we fracture this society, then the terrorists will have won.

Lord McKenzie of Luton: My Lords, this draft Order in Council is a constitutional measure that will reserve to the UK Parliament the functions and constitution of the Commission for Equality and Human Rights—CEHR—which is being created by the Equality Bill currently before Parliament. In broad terms, this will mean that only the UK Parliament will be able to legislate to change the way the body operates, or confer or remove functions. Before the draft order is made, it must be approved by both the UK and Scottish Parliaments.
	The order, made under Section 30(2) of the Scotland Act 1998, amends the reservation at paragraph 3(2) of Part 3 to Schedule 5 of the Scotland Act to add the CEHR to the list of reserved bodies. As the CEHR will take over the work of the existing equality commissions currently listed as reserved bodies, this order is necessary to ensure that the new body is similarly reserved.
	The CEHR will be a non-departmental public body, funded by the Secretary of State and responsible, through him, to the UK Parliament. It is therefore appropriate that its constitution and functions are the preserve of this Parliament. The references to the existing equality commissions in the Scotland Act schedule will not be removed by this order, as the commissions will continue to exist until the CEHR takes on its full functions in October 2007, and later in the case of the Commission for Racial Equality. The references will be removed by future orders or during a statute law revision exercise once those commissions have been dissolved. There is no need for us to do this now.
	We are debating the order now because the CEHR will to come into existence next year on a transitional basis, subject to parliamentary approval of the Equality Bill. It is the policy intention of the Government—agreed with the Scottish Executive—that on coming into existence, the body should be listed in the Scotland Act as reserved. The order will be commenced on 1 May 2006 so that it takes effect before the CEHR is established.
	The other place will also consider this order before the Equality Bill completes its passage through the Commons, as will the Scottish Parliament. I hope that noble Lords will agree that this is a straightforward and sensible use of the powers available under the Scotland Act. I beg to move.
	Moved, That the draft order laid before the House on 29 November be approved [12th Report from the Joint Committee].—(Lord McKenzie of Luton.)

The Duke of Montrose: I am most grateful to the Minister for introducing the order. I was very relieved to hear him say that it was being done under the powers of Section 30(2) of the Scotland Act because it had puzzled me that the order merely mentions Section 115. I am always very keen to learn about the inner workings of the Scotland Act, and Section 115 is obviously one of the powers retained to Westminster under it.
	I notice that despite the order containing a reference to paragraph 1 of Schedule 7, Section 115 is not one of the many sections itemised under that paragraph. Is it the case that there was a general provision that any orders for secondary legislation not itemised can still fall under any of the types of procedure listed in paragraph 2? Am I right in assuming that what we are seeing here is a procedure under the heading "Type A"?
	I am very glad to hear the Minister say that the Government are considering introducing a measure in due course to remove what will then be the lately demised bodies contained in the Scotland Act currently in paragraph 3(2)(c). That will definitely tidy up the legislation. Like my noble friend Lady Carnegy of Lour, we are pleased to welcome the measure.

Lord Maclennan of Rogart: I, too, have pleasure in agreeing that the measure seems appropriate. The extension of the operation of the Equality Bill to Scotland in respect of reserved powers seems entirely right. However, there are some areas of uncertainty about how that will work in practice and where the lines will be drawn between the work of the Commission for Equality and Human Rights and the work of the commissioner to be appointed under the legislation that is passing through the Scottish Parliament. The Bill clearly defers to the powers of the Scottish commissioner but, in evidence given to the Justice Committee of the Scottish Parliament earlier this month, reference was made to a memorandum of understanding being drawn up between the two officials—or, at least, between the equality commissioner and the commissioner in Scotland.
	It is a little odd, but it may be unavoidable, that there should be such uncertainties, particularly compounded by the fact that neither the Equality Bill nor the Scottish legislation has yet reached a conclusion. It seems perhaps not precipitate but a little premature to introduce statutory instruments that are consequential on the conclusion of the Bill. I make no particular point about this, save that if there had been a dialogue between the two agencies it would have been possible to be clearer about whether the memorandum of understanding would affect people's legal rights, and whether it would be appropriate for them to pursue alleged infringements under one or other procedure. That is pretty significant. But I acknowledge that the general principle of leaving to the Great Britain commissioner those matters that are reserved and to the Scottish commissioner those matters that are devolved is a broad principle that may be sufficient at this stage.

The Earl of Mar and Kellie: As someone who is undoubtedly interested in greater autonomy for Scotland, when I saw an SI with "Devolution, Scotland", written on it, I was excited. However, I can assure noble Lords that the disappointment is overwhelming, because the order is not about devolution at all. In fact, it is virtually the first supposedly devolution order that I cannot say I support because it is devolutionary in trend. It is not; it is a disappointing order, albeit pleasantly brief.
	The one legislative aspect that I should like to ask about is why the measure was not simply included in the Act or in the Bill. Why was this amendment to the Schedule to the Scotland Act not covered in the Bill itself? Why are we having to go through this process, given that it is not actually taking us anywhere?

Lord McKenzie of Luton: My Lords, the purpose of this straightforward order before the House today is to strengthen the regulatory regime for premium rate telecoms services—PRS—to ensure that consumers are adequately protected. The order under the Communications Act 2003 makes just two provisions: it raises the maximum penalty which the PRS regulator ICSTIS—the Independent Committee for the Supervision of Standards for Telephone Information Services—can impose on those that abuse PRS from £100,000 to £250,000. it adds ICSTIS to the list of persons to whom Ofcom may disclose information about telecoms companies, including information from application forms for PRS numbers which will indicate to whom such numbers have been allocated.
	Premium rate services offer information and entertainment via telephone, fax, PC (e-mail, Internet), mobile or interactive digital TV. Many thousands of different services are available, ranging from TV voting lines—for example, "Strictly Come Dancing"—and competitions, to mobile ring tones and directory inquiries. The services are popular with the consumer and easily accessible. The UK PRS market is worth more than £1 billion per year. It is the oldest and the largest such sector in the world.
	PRS have been an established and innovative part of the communications sector for a number of years and the Government want them to continue to thrive. But in recent years PRS scams have caused consumers serious problems. For example, Internet diallers have been connecting customers to premium rate sites they did not wish to access. Another common scam is pre-recorded phone messages which claim consumers have "won prizes" and require a call to a PRS number at a cost of £1.50 per minute. The unsuspecting consumer then finds out that no such prize exists and in the mean time has run up a phone bill for £10. During the summer of 2004, thousands of people a month complained to ICSTIS of being billed for PRS calls that they had not made. These calls create real consumer harm and many consumers have faced bills of hundreds of pounds for services they had not used.
	In response to this serious consumer harm, the Government, the industry, the regulator Ofcom and the PRS regulator ICSTIS worked together to tackle the issue. DTI asked Ofcom to carry out a review of the regulation of premium rate services last year to ensure that consumers were adequately protected. Ofcom published its review of PRS regulation in December 2004. A number of recommendations to reduce the scope for consumer harm were made, including raising the maximum penalty for those who abuse PRS; they are now all being implemented. Key areas for ICSTIS action going forward are: more effective regulation; faster enforcement action; consumer refunds and better information for consumers on how to protect themselves from being the victim of a PRS scam. Through the parliamentary process there is now an opportunity to strengthen ICSTIS' powers further to act more strongly against rogue operators who cause such misery and harm to the consumer.
	Following harm to consumers caused by the scams which came to light in 2004, ICSTIS argued convincingly in favour of raising the maximum penalty from £100,000 to £250,000. ICSTIS also requested that we take action to enable Ofcom to disclose contact information from numbering application forms so that ICSTIS can be swifter in taking enforcement action against those who misuse PRS.
	The provisions in this order were subject to public consultation this summer. The responses were overwhelmingly in favour of raising the maximum penalty and of adding ICSTIS to the list of those to whom Ofcom may disclose numbering information.
	The low collection rate of fines by ICSTIS concerned some of the respondents. The collection rate impacts on the level of deterrence. But ICSTIS reports that collection rates are improving. In 2002, the rate was 36 per cent; in 2003, 43 per cent and in 2004, 66 per cent. Other things which should help with this are: implementation of an Ofcom recommendation (in September 2005) for terminating communications providers to withhold funds from PRS service providers for 30 days—this means ICSTIS is more likely to be able to collect fines because money will be withheld in the PRS payments system for longer and can be recovered more easily by ICSTIS; the recently introduced key performance indicators agreed between Ofcom and ICSTIS which make ICSTIS more accountable to Ofcom and should help to lift ICSTIS' overall performance; and improved due diligence with mandatory information requirements on operators who contract with service providers—those who would be fined if things go wrong—so that it will be easier for ICSTIS to find the culprits.
	The role of ICSTIS is to prevent consumer harm. It does this by requiring premium rate service providers to adhere to a code of practice for clear and accurate pricing information, honest advertising and appropriate and targeted promotions.??
	Higher fines will act as a better deterrent against those who abuse PRS and are a more appropriate sanction for those who inflict such widespread consumer harm. The Government are encouraging ICSTIS to use its revised fining powers as flexibly as possible to target the worst abusers of the PRS charging mechanism. Disclosure of company contact information from Ofcom numbering application forms will speed ICSTIS's response to any wrongdoing. Both Ofcom and ICSTIS requested that provision and, as mentioned earlier, there was overwhelming support for it. The order will enable ICSTIS to more easily trace service providers operating behind misused numbers and quickly take action to close down problem services as necessary, which reduces the scope for consumer harm to accumulate.
	A regulatory impact assessment was carried out for this order, and the results have been published with the Government's response to the consultation. The assessment concludes that this order introduces no additional regulatory burden for legitimate businesses. The order is made to strengthen the powers of the PRS regulator, and I commend the order to the House. I beg to move.

Lord Methuen: From these Benches, we welcome the introduction of this order and the increase in the level of the fine. I do not find the £250,000 excessive. I am sure that in the case of the small firms, they probably need putting out of business anyway, because if they are not offending they will not be fined. That is my opinion. I would like to have clarification of a number of points. First, will the Minister clarify the situation that has already been mentioned in which the premium rate supplier is an overseas firm? I can understand that it would be difficult for ICSTIS to collect any substantial sum of money from such a firm at all.
	Secondly, can the Minister comment on the recovery of charges? We are aware that some people have suffered losses of £800 or £1,000. What provision is made for recovering those? Finally, I want to make a point about the position of the network providers—such as BT, which is also gaining benefit from the rogue firms. If there is a fine outstanding on a firm or there is any money going to the firm, it should not be permitted to accept any call charges and should refund those. What can the Minister say to that? However, we generally welcome the order.

Lord Skelmersdale: My Lords, I am grateful to the Minister for explaining these regulations so fully. I confess that, although I am not known as a conspiracy theorist, when I first looked at this measure and before I received the Explanatory Notes and the very helpful letter about them from the noble Lord, I wondered whether they were hitting at the right target. Almost 600,000 people over the age of 25 are on jobseeker's allowance and we know that something like 1 million people who wish to work are receiving invalidity benefit. So my first question is: why is this pilot not being extended to them?
	I accept that there are obvious medical difficulties with invalidity benefit and that therefore super checks would have to be made. None the less, given that we know that the longer people are out of work the less likely they are to find work without extra help, I feel that something of this sort would be appropriate to people on invalidity benefit. But I suppose that we have to wait yet again for the Green Paper and, indeed, from what I read in today's newspapers on the subject of invalidity benefit, for the scaling-down of the Green Paper.
	On these regulations, I understand that under Section 29 of the Jobseekers Act 1995, pilot regulations such as these can test whether a specific change in social security regulations is likely to encourage people to find work or to improve their chance of doing so. Last week, I spoke briefly about the dignity of work and anything that can be done to help people into work is clearly a good thing. One wonders, from studying these regulations, whether the Government have discovered that New Deal—in other words, intervention after 18 months—is not going quite as well as they would like and that is why they are testing this particular scheme.
	The Minister mentioned the figure of 31,400, which compared with 595,600 does not appear to be a lot. I became rather confused in listening to that passage of his speech. Am I to assume that 31,400 people would be helped in the 10 pilot areas or does the figure of 31,400 apply to some other group of people? Perhaps he can explain that.
	On the detail of the regulations, I have two points. Regulation 3 talks about the Secretary of State considering it appropriate for certain people to be on this mandatory pilot scheme. One wonders what is intended by the word "appropriate" in paragraph (2) of that regulation. Secondly, very widespread and disparate areas have been chosen. I can well understand why the spread has been chosen. People, even when unemployed, still move around the country, so what would happen if an unemployed person moved from, say, Biggleswade to Macclesfield, which is quite a distance? Would the appropriateness come into the decision about whether to refer him, or would he be in default and, therefore, liable to lose his benefit for a week? Those are all the points that I have on these regulations. In general I welcome them.

Baroness Scotland of Asthal: I ask the Committee to agree that this new clause be added to the Bill. At the same time, I ask it to agree that Clause 36, which the new clause replaces, should not stand part of the Bill. I hope that we need not spend long on the amendment. In the contentious area of pre-charge detention, this is one aspect that is largely uncontentious. I am sure that Members of the Committee will give thanks for that.
	As the Committee will be aware, in another place, the Government committed to bringing forward a sunset clause to deal with the extended period of pre-charge detention. We were keen that Parliament should have another opportunity to consider the matter after that power had been in operation for a year, after which we felt that some of the concern about the extension of the maximum period for which a terrorist suspect could be detained prior to charge would have fallen away. Several amendments intended to provide that that extension would be time-limited to 12 months were tabled at Report in another place. One of those is now contained in the Bill in Clause 36. Clause 36 provides that Clause 23 ceases to have effect after 12 months unless an order is made by the Secretary of State providing that it shall remain in force for a period of 12 months. The order will be subject to the affirmative resolution procedure.
	As the Committee may be aware, Clause 36 was proposed by Mr David Winnick, who did not have at his disposal the expert services and significant experience of parliamentary counsel when he drafted his amendment. As a result, Mr Winnick has accepted that Clause 36 is technically defective. In the incidence of no order being made, under the present drafting, Clause 36 would remove certain texts from Schedule 8 to the Terrorism Act 2000 that are necessary to the operation of that Act. Also, as drafted, Clause 36 does not take account of the fact that Clause 23 makes amendments to Schedule 8 beyond increasing the maximum period of pre-charge detention. The new clause replaces Clause 36 in line with a commitment given to the House by my right honourable friend the Home Secretary at Report. It reflects the spirit of Clause 36 and replicates all its key provisions.
	The new clause provides that extension of the maximum period of detention and related provisions in the clause shall cease to have effect 12 months after the commencement of that clause unless an order continuing the provisions for a further 12 months has been approved by both Houses of Parliament. If such an order is not passed, the maximum pre-charge detention period in terrorism cases will revert to 14 days. That, in effect, provides for the annual renewal of the extension of the maximum to 28 days.
	The proposed new clause also contains provisions governing what would happen to those detained at the time should Parliament decline to renew the powers. That explains why such a relatively lengthy clause is needed for what should be a fairly simple provision. The new clause also differs from Clause 36 in that it focuses on amending Schedule 8 to the Terrorism Act 2000 rather than Clause 23, thereby ensuring that the other amendments made by Clause 23 to Schedule 8 to that Act remain unaffected if an order renewing the extended period of detention is not made. That is important, as it preserves the useful alterations to the operation of Schedule 8, which included a number of enhancements to existing procedures advocated by the police and the Crown Prosecution Service, the inclusion of which was agreed by the other place.
	The new clause correctly represents the spirit of Clause 36 while ensuring that no damage would be done to the fabric of the Terrorism Act 2000 if the powers to extend detention to 28 days were to lapse. That is important, as I am sure all noble Lords would accept. I do not believe that noble Lords would ever consider allowing defective legislation to leave this place. I beg to move.

Lord Robertson of Port Ellen: On the grounds that I do not have the same amount of déjà vu on the subject as everyone else, I will speak first in the debate initiated by the noble and learned Lord. First, again I declare what might be an interest. I am deputy chairman of Cable and Wireless, the second largest telecommunications company in the country. But I repeat that I talk today from my experience as a former Secretary of State for Defence and as a former Secretary-General of NATO, which is why I am strongly and passionately opposed to what sounds on the face of it to be the attractive proposition that the noble and learned Lord puts forward.
	If I thought we could protect all the sources and techniques and still make intercept evidence available, I too would be attracted. But I know that we cannot do so, which would make it a serious liability, counter-productive and, indeed, dangerous to those involved in these activities. We were told recently by the authorities that both before and after 7 July major operations of a terrorist nature in this country have been frustrated by information that was gained. It may not be sufficient to put anyone on trial, but it has prevented atrocities taking place. I believe that all in this country agree that deterrence is better than simple conviction. If, by convicting a couple of people, we declare our hand and expose our techniques for gathering information on a wide range of things, we would have a bad bargain and we might rue the day we went down that route.
	Most of these arguments have been rehearsed in previous debates. Not only did I participate in the debate on the Private Member's Bill brought forward by the noble and learned Lord, Lord Lloyd of Berwick, but I have also read some of the other debates that have taken place. The ground is well and truly trodden, but sometimes in politics certain key things need to be repeated in order that they can be appreciated fully.
	The fact is that communications of all sorts are becoming ever more sophisticated, complex, concealed and surmountable. The criminal classes present a constant challenge in their efforts to stay ahead of those who stand for an ordered rather than a disordered society. If we were to expose the methods by which information is gathered, as inevitably we would have to do if the law was changed in the form being suggested, we would suffer more and be in much greater danger.
	I shall go over some of the evidence put forward in the last debate, but before I do so I should like to pray in aid someone who takes a view similar to that of the noble and learned Lord; sometimes, it has to be said, with the same persistence. I refer to Mr Anthony Arlidge, QC, who appears to be doing the rounds of the legal conferences arguing in favour of the admissibility of intercept evidence. I do not know him personally or anything of his provenance, and I do not know how mighty he is in terms of the legal profession. However, he certainly pops up at conference after conference arguing strongly that intercepted information should be put into evidence. He has a somewhat na-ve view of telecommunications since he seems to think that the only evidence we are talking about is telephone evidence. Much of the information gained is not strictly telephone evidence at all, but for the moment we shall leave that to one side.
	I shall quote from a press release issued by Mr Arlidge's chambers after he attended a Sweet and Maxwell conference held on 28 June this year:
	"However, Anthony Arlidge QC cautions that allowing intercept evidence to be used in court would not be without risk. The defence might seek to argue, he claims, that it is relevant for them to know if, for example, there has been a participating informant and then try to force the argument to the point that the prosecution have to drop their case".
	That is exactly the point I made in the last debate. Indeed, it was at the suggestion of the noble and learned Lord that, in extremis, that is what the Government could do, but nothing would be more likely to undermine the authority of the court system and the strength of argument against terrorists than dropping cases in the middle of proceedings. However, Mr Arlidge goes on to make a quite devastating point:
	"Once taps are admissible, the opportunities to play this game will be greatly extended".
	So we are not talking here about some layman who was the subject of criticism in the last debate when I made the assertion that clever lawyers can always be outwitted by even cleverer lawyers. We now have a very clever lawyer making the argument that we are opening a door here. If he says there is a risk, it is right and proper to examine that risk to see whether it is worth taking.
	Let me refer to some of the other views that have been expressed. The noble and learned Lord mentioned a few of the authorities which argue in favour of intercept evidence being used in court. In his 2004 report, the Intelligence Services Commissioner was very frank indeed: he said it would assist the operation of those hostile to the state if they were able to estimate, even approximately, the extent of the work of the Security Service, SIS and GCHQ in fulfilling their functions. That is a very clear and explicit point. The commissioner was quoted by the noble Baroness, Lady Park, in the previous debate, in a speech which is well worthy of Members of this House reading again.
	But, of course, as we found in the previous debate, the most devastating evidence against the proposition put forward this evening comes from Sir Swinton Thomas, the Intercept of Communications Commissioner. There was a remarkable exchange between the noble and learned Lord, Lord Lloyd of Berwick, and the noble and learned Lord, Lord Ackner, in the previous debate. I am sorry the noble and learned Lord, Lord Ackner, is not part of the tableau today. It was quite memorable. It was certainly worth spending a Friday afternoon in the House of Lords simply to enjoy it.
	The noble and learned Lord, Lord Ackner, chose to read out the letter from Sir Swinton Thomas, which the Intercept of Communications Commissioner had sent to both of these mighty former Law Lords. Sir Swinton Thomas was absolutely clear in what he was saying. He said categorically in his 2004 report that he was left in no doubt that the balance falls firmly against any change in the present law and that any amendment would overall be damaging to the work of the security, intelligence and law enforcement agencies. We are bound to listen to the considered view of this eminent lawyer—who was given the task by the country of looking specifically at this issue—and to bear in mind very carefully what he has said.
	But, of course, he went beyond what he himself called the bland words in his report. I think they are pretty devastating words—they do not sound bland to me—but in the letter that he sent to the two noble and learned Lords, Lord Lloyd of Berwick and Lord Ackner, he went beyond that. The noble Lord, Lord Ackner, said that Sir Swinton Thomas added that his view is that the disclosure that is now sought would do untold damage, especially to law enforcement and intelligence, and substantially increase the risk to us all. I do not believe that this House and this Parliament can afford to ignore such an explicit warning given by the man charged with that responsibility.
	If we are to do anything in this regard before we take that step, the words in the letter sent to both the noble and learned Lords, Lord Ackner and Lord Lloyd of Berwick, should be held very much in mind. I suggest that the argument still remains, very clearly and positively, against making any change in the existing law.

Lord Robertson of Port Ellen: That sounds quite plausible and reasonable. If Sir Swinton Thomas, who is in charge, were to come and make that case, and if he believed that the intelligence agencies thought that that was a possibility and could be done without compromising sources and techniques, I might be prepared to consider it. But, as I say, if the man the country has appointed to look specifically at the issue—never mind the other authorities who have been quoted time upon time—says that in his view the disclosure that is sought would be untold damage, especially to law enforcement and intelligence, and would substantially increase the risk to us all, we would be very unwise and very rash to ignore that advice.

Baroness Kennedy of The Shaws: I support the new clause. I do so, subject to all the precautions that one would wrap around it to ensure that when there were concerns about the security of the state and the protection of methods, those arguments could be made and the evidence not used.
	The arguments against telephone taps used to be used against electronic eavesdropping—bugging. Now, in the courts, we regularly have transcripts of conversations in motor cars and inside people's homes because a bug has been placed there to pick up those conversations. It can be very devastating evidence in some cases, including terrorism cases.
	When it comes to tapping telephones, it is different. A tap on a telephone on a landline follows pretty much the same sort of exemplar I mentioned with electronic eavesdropping in cars, for example, using the traditional bug. But we are talking about hoovering up conversations by satellite, and there is a resistance to making that kind of evidence available. I argue that that method is unreliable for the same reason. Sometimes it is not reliable because of the quality of the recording; sometimes conversations will take place in languages not familiar to those who are making a recording at a land station, picking up on the satellite waves; and the translations are not always very accurate.
	There are very good reasons for us calling into question the quality of some of that evidence. I can see good reasons for why it should not be seen as a reliable source of evidence, even as a source of intelligence. But if it is good, there must be occasions when the prosecution authorities say, "This is evidence which we would be content to place before a court and we would be happy to have the appropriate witnesses called to support it without it giving away any of the great national secrets which concern people".
	It is always a source of amusement to me that there are no secrets about how this is done. This kind of information is available to people. You may think you are privy to great secrets regarding the methods, but I can assure you that I have access to people who tell me exactly what the methods are. So it is a nonsense to think that it is a secret.
	In the panoply of methods to deal with terrorism, the state should be able to use this where appropriate and where it feels it would not be putting anybody or any particular method at risk. We can draft this provision in a way that would provide the sort of protections that the noble and learned Lord, Lord Lloyd of Berwick, has referred to under Clause 17.

Lord Thomas of Gresford: I do not know—how am I supposed to answer for what is in his mind? That is precisely the sort of thing that we are investigating all the time in court. I do not know why he has come to that view and the noble and learned Lord, Lord Carlile, and Sir David Calvert-Smith have come to a different view. Noble Lords who have been involved with the Security Service seem to be carried away by it. They think that everyone else in this country, including the legal profession—no, starting with the legal profession and going on to Her Majesty's judges—is incapable of assessing what the public interest is. That is nonsense.

Viscount Brookeborough: First, I apologise for not being here at the beginning of this; I did not quite fall asleep, but I did not realise that it was on. I will be very short.
	It seems to be black or white—either we have total disclosure or we have non-disclosure. I cannot believe that either of those is in practical terms what we need to have on the ground. The world is not like that. Why is it that certain people when asked a certain question—heads of the security services or whatever—say, "This threatens our people completely and absolutely, and you disclose anything"? Why is that others say, "You need not disclose it"? I am not as eminent as the noble Baroness, Lady Park, or indeed the noble Baroness, Lady Symons, and I certainly do not know as much as they do.
	To put it in slightly different terms, in Northern Ireland, we may have had information from those types of intercept or other types of information that we did not wish to disclose. There were mechanisms whereby that information was not used until such time as there could have been another source for it so that the sensitive source was not exposed. I cannot speak from their level, I fully accept that, but from my level, which was fairly low. In practical terms you have to balance what you are going to get and what you are prepared to sacrifice—if indeed you are prepared to sacrifice it—and how you might take the action that you wished to all along without exposing the individual, individuals or systems that originally set you on to it.
	I was not in the Second World War, but I believe that the noble Baroness opposite would be able to describe occasions when exactly that sort of thing happened—when an operation took place and the original, sensitive sources were not exposed. We are being rather blinkered about the issue; I cannot understand why the Government and certain people are being so. I am sure that if you offered the security services the assurance that under no circumstances would they be exposed if they did not want to be, but that such information could be used when they agreed to it, they would say, "Yes, go ahead"—so why are we not working on that?

Baroness Symons of Vernham Dean: I am sorry to interrupt. My noble friend and I did not argue "absolutely"; we said "as things stand now". We said that this was not a point of principle but an operational point. I would not wish the noble Lord to proceed on the basis that this is a point of principle. I made the point of saying twice "if things could be made so that this could be admissible" but, as things currently stand, in my view it could not.

Baroness Scotland of Asthal: That is why I say that there might be an increase in convictions but that that would be modest. Experience from other countries shows that the resources required to ensure that intercept material can be used evidentially would limit the number of evidential cases that law enforcement could handle.
	Let me explain why. Intercept as evidence will not transform results against the most serious criminals or against terrorists, who tend to be the most security-conscious in their use of communications. I know that it is the serious criminals and the serious terrorists about whom the noble and learned Lord, Lord Lloyd, is most anxious. Let us consider them. This is not just the UK's conclusions, which were based on the examination of real cases. For example, there has been recent media reporting of unsuccessful use of intercept product in terrorist trials in Spain and Italy.
	Australia's latest published figures on interception under the Telecommunications (Interception) Act 1979 report for the year ending 2004 shows that there were no convictions in the five terrorism trials that used intercept evidence in 2003–04. The Canadian 2004 annual report on the use of electronic surveillance shows that there were 683 interception authorisations that year, but that none ended with a conviction.
	In the United States in 2004, 1,710 intercept authorisations— that is, evidential interceptions—were used, which is fewer than in the United Kingdom; that resulted in 634 convictions. That is a lower proportion of authorisations resulting in convictions then in the United Kingdom where, using intercept for intelligence only, rather than evidentially, we estimate that we have a better rate of converting arrests into convictions. A further important consideration that my right honourable friend the Home Secretary mentioned in his Written Statement is that it does not make sense to change our system just as technology is changing and before we know what that means for how interception is regulated and deployed in future.
	My noble friends Lady Ramsay, Lady Symons and the noble Baroness, Lady Park, say that we cannot do it now but we may be able to do it in future, in which case we will want to, because of the obvious benefits; they are absolutely right. Technology is moving—and moving faster by the second.
	Over the next few years, the world of communications technology is likely to change very significantly in lots of ways. Terms such as "wiretap evidence" will soon be as redundant as talk of telephone operators and switchboards is today. They will be replaced by technologies such as Voice over Internet Protocol (VoIP), where the human voice is broken up into many signals transmitted across a variety of different routes before being brought together again on delivery, rather than being carried over a single line.
	The noble Lord's amendments provide no guarantee of the safeguards necessary to protect the relationship between intelligence and law enforcement agencies. That would lead to a reduction in co-operation, in the options available to criminal investigation and in its effectiveness as an intelligence tool and ultimately as an evidential tool. Increased reliance on PII only could not provide the degree of assurance sought. Crucially, the amendments take no account of that technological change. The Government are working with the communications industry to understand and respond effectively to technological change and to examine any evidential opportunities that that brings.
	However, one thing is certain: in just a few years' time the communications and interception world will be radically different from the one that we are looking at now, let alone the position when the noble Lord was more actively engaged in his previous role as Interception of Communications Commissioner. That is true for the rest of the world, not just the UK. Indeed, the early signs are that the UK is ahead of the rest of the world in meeting the challenges.
	The additional work commissioned on the subject will be completed by the end of the year. It would be premature to try to pre-empt the conclusions. But it is clear that the introduction of new technologies will raise by several notches the required protection of techniques and capabilities.

Baroness Scotland of Asthal: As I understand it, that is because there have been no such cases where the intelligence agencies have been able to so disaggregate the facts that substantive matters of evidence have been able to be put before the court in that way. That is the position. I assure the noble Lord that this is not anyone trying to be obdurate or difficult. Our clear preference, whenever possible, is always to be able to prosecute, always to have substantive evidence put before a court and always to get a conviction, if a conviction is possible, merited and just. That is always the preferred course. But, as I have said on a number of occasions, we simply do not have the means of putting intercept evidence before a court in a way that enables us to do it safely.
	We have taken the view, which it is not a view that we have come to easily, that it is not appropriate to admit that evidence. For those reasons—all the reasons given by everyone who has spoken against it—that we remain opposed to its inclusion.